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BLOUIN v. HEADLEY

October 25, 1999

GREGORY BLOUIN, PETITIONER,
v.
FRANK R. HEADLEY, SUPERINTENDENT ARTHUR KILL CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Wexler, District Judge.

MEMORANDUM AND ORDER

Gregory Blouin petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1994 state court conviction of manslaughter. For the reasons set forth below, the petition is dismissed as time-barred.

DISCUSSION

I. Time Limitations For Filing a Habeas Petition

Prior to 1996, there was no clear and formal limit on the time in which a state court prisoner could apply to a federal court for a petition for habeas corpus. This changed with the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, a one year statute of limitations applies to the filing of an application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The one year time period begins to run from the latest of:

  • the date on which the judgment became final by the
  conclusion of direct review or the expiration of the
  time for seeking such review;
  • the date on which the impediment to filing an
  application created by State action in violation of
  the Constitution or laws of the United States is
  removed, of the applicant was prevented from filing
  by such State action;
  • the date on which the constitutional right asserted
  was initially recognized by the Supreme Court, if the
  right has been newly recognized by the Supreme Court
  and made retroactively applicable to cases on
  collateral review; or
  • the date on which the factual predicate of the
  claim or claims presented could have been discovered
  through the exercise of due diligence.
  28 U.S.C. § 2244(d)(1)(A)-(D). AEDPA provides for a toll of the one year period during certain circumstances. For example, the one year period is tolled during the time when a prisoner's application for state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2).

A post-conviction motion is considered to be "pending" for the purposes of AEDPA's toll, from the time the motion is first filed until a final decision on the merits is rendered, including the time during which the motion is pending on appeal. Duncan v. Griener, 1999 WL 20890 *3 (S.D.N.Y. January 19, 1999); Geraci v. Senkowski, 23 F. Supp.2d 246, 252 (E.D.N.Y. 1998).

The tolling provision of AEDPA does not allow the one year period to run anew each time a post-conviction motion is ruled upon. Instead, the statute merely excludes from the calculation of the one year period any time during which post-conviction relief is pending. Torres v. Miller, 1999 WL 714349 *4 (S.D.N.Y. August 27, 1999). Thus, the provision stops, but does not reset, the clock from ticking on the time in which to file a habeas petition. It cannot revive a time period that has already expired. See Brooks v. Artuz, 1999 WL 138926 *2 (S.D.N.Y. March 15, 1999).

II. The Present Petition

Petitioner was convicted in state court on September 9, 1994. He appealed his conviction to the Appellate Division of the Supreme Court and that court affirmed the conviction on January 22, 1996. On June 25, 1996, Petitioner was denied leave by the New York Court of Appeals to further directly appeal his conviction. Petitioner's conviction became final, for purposes of AEDPA, when the time in which he could seek leave to appeal to the United States ...


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